Deciphering Judicial Activism- A case for PILs

In 1990s,country witnessed unstable coalition governments,politicisation of crimes,high levels of corruption,policy paralysis.Legislature and Executive lost their credibility among the masses. Judiciary stepped in and assumed pro-active role in providing solutions resulting in Judicial Activism.As a result of it, Judiciary has entered into the domains of legislature and executive.The concept of Public Interest Litigation was introduced under which any person can approach judiciary as long as public interest is involved. PIL thus removed the limitation of locus standi. It has enabled justice for disadvantaged sections of society. PIL was made popular in India by P.N.Bhagwati and V.R.Krishna Iyer. It was through judicial activism that the Supreme Court in 2001 ordered States to provide mid-day meals to schoolchildren.

Critics say PIL is anything but Public Interest Litigation.They call is Profit/Publicity/Personal Interest Litigation. 

• PILs are often filed for gaining publicity.
• They are frequently used against political and business rivals.
• Judical Activism has disturbed the delicate balance of power. It has resulted in Judicial Adventurism. Difference between Judicial Activism and Judicial Adventurism is subjective i.e. depends upon perspective. Uniform Civil Code and Interlinking of rivers are policy decisions. Law making should lie in the exclusive domain of Legislature. Salwa Judum was related to the maintenance of law and order which falls in the domain of the Executive. Judiciary should stop meddling in matters lying in the jurisdiction of Legislature and Executive.
• Critics say personal opinion has been expressed in the form of judgements like :"Neoliberal policies of government is a cause of corruption"."Bhagwad Geeta should be made compulsory"."Government should be carried on the lines of Rajya Sabha."
• In the name of Judicial Activism,courts have neglected their traditional functions.4.5 million cases are pending with our judiciary and it would take 300 years to come out with judgements for them,provided no fresh cases are filed. Before reforming other institutions, Judiciary should first look into itself. There is secrecy in the functioning of judiciary.India is the only country wherein the judges appoint themselves.Hence Judiciary is itself not accountable.Critics say Judicial Activism is undemocratic in nature because Judges are not popularly elected.Ergo they cannot formulate or declare laws.

Arguments in favour:

• Through PILs, Judiciary has ensured the accountability of Legislature and Executive towards citizens, thus promoting the ideals of democracy.As long as welfare of the people is ensured,it hardly matters who is doing it.
• After all,Judiciary is forced to intervene because of the inactions of Legislature and Executive. It is natural that if any of the organs fail to do its mandated duties,then some other organ should come and fill in the vacuum.
• Judiciary has realised the abuse of PILs and the High courts have been forbidden to accept frivolous PILs. If a PIL has been filed with an ulterior motive,the person is liable to be punished with a penalty of Rs. 1 lakh.

A case has been made for supporting PILs in the post titled 'Landmark judgements that changed India'.

Landmark Judgements that changed India

Landmark Judgements of the Apex Court in response to PILs-

People's Union for Democratic Rights v/s Union of India,1982: On the deplorable working conditions of construction workers, the court observed that "Right to life under Article 21 includes the right to have a dignified existence."

S R Bommai v/s Union of India,1993: The judgement was significant for the evolving Centre-State Relations.SC ruled that Imposition of Article 356 can be reviewed by Judiciary.The misuse of Article 356, popularly known as "President's rule", to impose central authority on states, was stopped after this judgement.

Vineet Narain case,1997:The case related to Hawala scam (unaccountable money).SC struck down "Single Directive" issued by Central Government that provided that CBI must take permission from the Government to to investigate cases against any officer who ranks above Jt.Secretary.SC came out with the criteria for selecting CVC and advocated that the person so appointed must have impeccable integrity.Appointment of PJ Thomas as the CVC was quashed by the apex court on same grounds.

Vishakha v/s State of Rajasthan,1997: Under Article 141,SC issued guidelines for safeguarding women from sexual harassment at workplace.

Salwa Judum case,2011: Supreme court termed the outfit unconstitutional on the grounds that the State cannot delegate the responsiblity of maintenance of law and order to the citizens.

2G spectrum case,2008: Citing irregualarities, SC cancelled 122 awarded licenses of spectrum.

Coal Block Allocation Case: SC cancelled all but 2 coal block allocations since they are done withour fair bidding.

Supreme Court is monitoring the SIT on recovering black money stashed abroad.

Indira Sawhney Case v/s Union of India,1992 -SC held that reservation cannot exceed 50%.It ruled that "Any law included in the 9th schedule can be reviewed by Judiciary.''

SC had directed Centre to look into the the feasbility of Interlinking of rivers and to enact a Uniform Civil Code under Article 44 of the DPSP.

Goods and Service Tax

The introduction of the GST (122nd AMENDMENT BILL) would be a significant step in the field of indirect tax reforms in India.The GST Bill proposes to empower both States and the Centre to levy the GST, which will subsume the services tax, excise duties, stamp duties, entry tax,octroi,state VAT and central sales tax.It proposes that the Centre be empowered to tax sales of goods and States get to tax services. At present, the Centre can tax services but not sales and distribution of goods. States can currently tax sales and distribution of goods but not services.Further,GST would be collected at the point of consumption rather than the place of production.In principle, it is the same as the Value-added Tax (VAT) — already adopted by all Indian States — but with a wider base. While the VAT — which replaced the sales tax — was imposed only on goods, the GST will be a VAT on goods and services.

GST would be applicable on supply of goods or services as against the present concept of tax on the manufacture/sale of goods/provision of services.GST would apply to all goods and services except alcohol for human consumption. GST on petroleum products would be applicable from a date to be recommended by the GST Council.

Benefits:

• By subsuming a large number of central and state taxes into a single tax, it would mitigate cascading effect or double taxation in a major way.GST regime can boost India’s growth by up to 2.5 percentage points. Production costs would be cut,thereby making exports more competitive.
• India would become one seamless market and this would result in economic integration.Trucks won't need to wait on inter-state borders. 
• GST would simplify the indirect tax administration, broaden the tax base and result in better tax compliance.
• GST will improve ease of doing business.

Sticking Points:

The parliament may,by law, provide for compensation to states for revenue losses arising out of the implementation of the GST ,on the GST council recommendation. This would be up to a five year period.Consensus eludes the Centre and the States on the issues of compensation, petrol tax.Since the GST will be levied on consumption of goods and services, states that are net producers stand to lose revenue. States must not however lose sight of the long term gains. 

Taking stock of the Education Sector

Education reforms:

India used to be the top destination for students from other countries coming in for higher studies. Nalanda was among the biggest centres. After Independence, the policy makers worked hard to transform the elitist system of education created by the British into a mass based education. The Annual Status of Education Report (ASER), 2014, says only an average 48 per cent of Class V children across India can read a Class II-level text. Students are the victims and culprits of India’s broken higher education system.

Barriers to access and Challenges:

Presently, less than 4% of GDP is allocated to education. 

Though RTE has pushed up Gross Enrolment ratio but dropout rates still run very high. Gender (Higher drop rates among girls owing to Dowry, Early Marriage and security concerns). Caste (Teacher's differential treatment has resulted in high droprates in the SC community).Bringing working children to schools. Mere advocacy on banning child labour is not enough.

Language (Unavailabilty of content in vernacular languages on Web). 

There are growing instances of Plagiarism.

The Right of Children to Free and Compulsory Education Act stipulates a 30:1 pupil-teacher ratio. In the last 10 years, there has been a massive ad hoc expansion of Universities, resulting in a shortage of faculty by 40 to 50 per cent.

Some faculty in order to be popular,dilute standards and supervise three or four times the number of research students prescribed under University Grants Commission (UGC) norms. There are others who run non-governmental organisations and institutions outside JNU. The result is a conflict of interest(if one is staying away from primarily responsibility).

Malpractices in TETs.

Road Travelled:

Technology is being used to provide better access to education through several programmes like GIAN Global Initiative of Academic Networks under which faculty from highly rated institutions abroad will visit India. Those lectures would be later made available to students across the country through the SWAYAM, the MOOCs platform and National Digital Library. They have the potential to address the scarcity of teachers. Learning would become more exciting. However, the teacher-learner interaction would be lacking.

R&D: 'IMPRINT India', a Pan-IIT and IISc joint initiative to develop a roadmap for research.

Saransh is an online platform to facilitate interaction between parents and teachers.

Sugamya Bharat Abhiyan (Accessible India) to make education accessible for the differently-abled.

Mid-day meal going a long way in breaking caste consciousness and would attract the children from marginalised sections to attend schools.

All the Central Universities are proposed to be brought under a common Act, there is to be a common curriculum, a teacher’s recruitment board, transferability of students&faculties among these universities and so on. If any of this is implemented, the autonomy of Central Universities will be severely eroded. Transfer of Faculty can be used as a tool for punishment and would promote sycophancy. 

Road Ahead:

It needs to be increased to 6%. Rope in alumni and private participation and encourage philanthropic culture.

To improve the quality of teachers recruited, centralised examination system on the lines of UPSC, SSC

Value based education becomes necessary for the all round development of the child. We need to promote scientific temper among students. Skill based learning.

Continuous and Comprehensive Evaluation to enhance learning outcomes. Parents should not impose their unfulfilled dreams on their children. Ergo, parents should allow their children to discover themselves and follow their own dreams.

Law against conversion!

Attempts at mass conversion by certain organizations who sought to convert the Christians and the Muslims back to Hinduism raised a national debate regarding the legal stance on the matter.There was a debate in the Parliament regarding the need of an anti-conversion bill.

Prior to independence, the British did not enact any law. but many Princely States did. For e.g. Rajgarh State Conversion Act 1936. In 1954, the Parliament took up a bill in this regard, but was later dropped because of lack of support.

Articles 25-30 of our Constitution guarantee citizens freedom of conscience and free profession, practice and propagation of religion.They also guarantee freedom to manage religious affairs, monetarily contribute to promotion of any religion, and to set up and administer educational institutions.The right to choose a religion of one’s choice is fundamental to the freedom of religion, but as the Supreme Court has held, the right to propagate a religion does not include any ‘right’ to convert other people.A distinction has to be made between “conversions of a religious nature” and ‘ghar vapsi.’ While the former is an exercise of one’s free will and a fundamental right, ‘ghar vapsi’ is a political process carried out by the powerful exponents of religious nationalism – much against the principle of secularism.

The government’s call for a national ban on conversions would amount to a direct attack on the individual’s freedom of conscience to choose one’s faith and on the freedom to profess, practise and propagate the faith of one’s choice. Hence conversion should not be banned per se but conversion by force or inducement should be discouraged. Infact it is banned under IPC 153 A.

According to the law ministry's opinion forwarded recently to the home ministry, the SC had in a 1977 ruling made it clear that 'anti-conversion law' falls within the purview of 'public order', a 'state' subject as per the seventh Schedule of the Constitution. And hence the Union Govt. cannot legislate on the same.

States like Madhya Pradesh, Odisha, Rajasthan, Himachal Pradesh and Gujarat have a law that bans Conversion by force or inducement. Forced conversion has been made a cognisable offence.The definitions prescribed for these terms however are decidedly vague. These laws have been used by State governments to target conversions to minority religions, in particular.There is also concern that allowing law enforcement or judicial authorities to determine whether a conversion has been forced allows the state to intervene too heavily in religious matters that involve personal and ethical choices.

Ergo there is no need to have a pan-India legislation on it.This issue should not be politicized and the simple fact that needs to be understood by all is that the minorities need to be protected.

Further Reading:

If one were to be converted to Hinduism, the question arises which caste is assigned to the new convert. This question has become more complicated because the State policy provides for reservation on the basis of caste. Hindu social reform movements have been partly in response to the proselytising Christian missionaries during colonial rule, identifying the possibility of large-scale conversions to Christianity. Arya Samaj was founded by Swami Dayananda in 1875.He set up schools and hospitals on the lines of Christian missionary activities and started a massive campaign to bring back to Hinduism those who had converted to Christianity and Islam. B.R. Ambedkar settled for Buddhism. The Constitution is a secular document, but there are legal provisions that discourage conversions to non-Indic religions. Originally, only Hindus were eligible for reservation under the Scheduled Caste quota, but later Buddhists & Sikhs were included.Hence, this provision discourages conversion to Islam and Christianity.

Panchayati Raj

Intro:

In Gandhiji's vision of Poorna Swaraj, empowerment of villages held a key position. Given the humongous population our villages sustain, it becomes all the more important to make the functioning of villages more democratic and efficient.Theres is need for democratic decentralisation to usher in genuine grass roots democracy. Participative Governance is a cornerstone of a Democracy. Article 40 of the Indian Constitution under the Directive Principles of State Policy lays down that the State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary. On the recommendations of Balwant Rai Mehta Committee, 73rd C.Amendment Act, 1992 was enacted which provided Constitutional Status to the Gram Panchayats.  Despite the constitutional mandate, the growth of self-governing local bodies has been uneven and slow.

Issues

Though 33% reservations have been provided to women. Their participation is however limited due to their male spouses ruling by proxy. Holding Panchayat meetings outside the villages limits their participation further.

States often postpone the elections on some pretext or other. 

Even mandatory provisions like the constitution of District Planning Committees and Metropolitan Planning Committees have been ignored in many States.

The major sources of income for local governments like property tax etc. are woefully inadequate to meet their obligation. Allocated funds require an average of 6 months to reach the Panchayats. Due to the fear of losing popularity among villagers, the village headmen are reluctant to impose taxes.

Way Forward

Kerala has performed fairly well in the Devolution Index. Its model needs to be emulated in the other states.

Improve their finances by searching for avenues of raising resources.

Application of the principle of subsidiarity in the context of decentralisation. The State governments should transfer the mandate of legislating on 29 subjects to the Panchayats as mentioned in the 11th schedule. There should be a clear delineation of functions of local governments vis-à-vis State Governments. 

A part of royalty should be given to Panchayats for the loss resulting due to mineral excavation.

P.S: Rajasthan was the first state to implement Panchayati Raj. Ashok Mehta Committee's recommendations were made after that of Balwant Rai Mehta Committee's recommendations. The former recommended replacing 3-tier govt. with 2-tier govt.

National Judicial Appointments Commission

NJAC seeks to replace the collegium system of appointment and transfer of judges.The NJAC will recommend to the President for the appointment and transfer of judges including the CJI of higher judiciary, viz., Supreme Court and High Courts.Constitutional status to NJAC has been provided by the 99th Amendment.A new article, Article 124A has been inserted into the Constitution.

Composition:

The NJAC has the Chief Justice of India (CJI) as chairperson and two senior-most judges of the Supreme Court as members, apart from the Union Law Minister and two eminent personalities, of which one of them would be nominated from among the Scheduled Castes, the Scheduled Tribes, minorities, OBCs or women.In NJAC, the two eminent persons would be nominated by a committee comprising the Prime Minister, the CJI and the Leader of the Opposition.A decision of the Commission can be vetoed by any two members.

Pros:

NJAC would usher in an era of accountable Judiciary.After all,the job of a judge should be to judge cases and not to appoint brother judges.Independence of judiciary does not include sitting judges making judicial appointments.Judges functioned independently in the first 40 years, before the collegium system came into existence.Emergency was only one aberration.The tussle between the executive and the judiciary for control over the process of judicial appointments has its origins in the First Judges case.In that case,the S court came down in the favour of the executive.In 1993,however in the Second Judges case, the apex court overruled the First Judges case.This decision led to the birth of the collegium system, the working of which was set up in the Third Judges case.The collegium system had become nothing more than a secret society whose deliberations were not a matter of public record. Collegium  consisted of CJI+4 senior most judges and CJI+2 senior most judges for the appointment of SC and HC judges respectively.

Cons:

Independence of Judiciary would be lost.The fear is that the NJAC may encourage High Court judges to give pro-government rulings with the object of gaining eventual promotion to the Supreme Court.

Legislative interfering in Judicial process goes against the "Doctrine of separation of power". Today, the government is the largest litigant in the courts.The influence of the government in any form in the appointment process would affect the independence of judiciary.